Florida’s Migrant Worker Problem

The U.S. Department of Homeland Security probably surprised no one when it announced that as of now, Haitians are ineligible for the H-2A guest farmworker visa program. Officials cited “high levels of fraud and abuse” and “a high rate of overstaying” visas.

The cutoff tracks administration moves against migrants who enter the country legally but stay on illegally. It also closely follows President Donald Trump’s consequential use of an expletive to characterize Haiti and, by extension, its people.

Florida agriculture has its share of illegal immigrants from Haiti and many other places. But the state’s farmers, harvesters and packers are adamant that the industry runs on H-2A visas and disrupting the program could be ruinous.

An H-2A temporary visa is good for up to 10 months and does not provide a path to citizenship. When the picking season ends, the worker must return home, generally to Mexico or Central America if the fields are in Florida. A breakdown of visa holders by nationality could not be obtained, but Haitians apparently constitute a small percentage of them in Florida.

The visas’ importance to an $8 billion industry cannot be overstated, insiders and savvy observers agree. There simply aren’t enough domestic workers willing and able to harvest crops, sometimes while perched on ladders wearing bags around their necks to free both hands for picking.

“Where would we be without H-2A? We’d be out of business,” says Steve Johnson, owner of a wide-ranging harvesting company based in Wauchula, south of Tampa. Of the 900 workers he employs to gather berries, citrus and onions, 90 percent are in the program.

Florida leads the nation in H-2A worker positions certified by the Department of Labor. In fiscal year 2017, the state had 15.9 percent of the total 97,285, topping Georgia (13.2 percent) and North Carolina (9.8 percent).

There are an estimated 25,000 visa holders in Florida, or about a quarter of the roughly 100,000 eligible crop workers. (Plant nurseries account for another 100,000 who can’t apply because their work is continuous, not seasonal.) And the number of H-2A applications is rising.

“The program nationwide will continue to grow exponentially, and that just speaks to not necessarily the greatness of the program, but to the need to gain an accessible workforce for our agricultural producers. That’s the best avenue and the compliant, legal way to get those workers,” says John-Walt Boatright, national affairs coordinator for the Florida Farm Bureau Federation.

Yet no one is delighted with H-2A. Farmers chafe under extensive regulations and paperwork and complain it’s too expensive. “Our producers find it incredibly difficult and cost-prohibitive to participate, and yet in order for them to produce their crops they have to have a workforce,” Boatright says.

Labor advocates say established farmworker communities such as Immokalee are being destroyed while employers cherry-pick young males from Mexico and other countries with no fair-labor laws. The system is abused by recruiters who illegally charge migrants substantial fees. And employers who want to cheat workers can get away with it because they have the upper hand – in the current anti-immigrant climate, more than ever.

Gregory Schell, an attorney with Southern Migrant Legal Services, tells the story of a Mexican laborer who complained to his foreman about being shortchanged.

“The foreman told him, well, yes, you are being cheated, but I have the magic pen,” Schell says. He explained that the foreman recorded the names of returning workers and, when he came to “a complainer, the pen ran out of ink.”

The worker was a named plaintiff in a federal class action against Sorrells Brothers Packing Co. of Arcadia, east of Sarasota. The lawsuit claimed the citrus concern failed to pay sufficient wages to dozens of workers as required by federal law and the H-2A program.

Sorrells denied the allegations but settled the case in 2008 for about $600,000, plus $150,000 in fees to plaintiffs’ counsel from Florida Legal Services.

But these days the courts may be less hospitable to immigrant worker complaints.

On Jan. 9, a federal judge in Tampa ruled in an H-2A case that Fancy Farms, a Plant City strawberry grower, was not liable for failing to reimburse workers the $3,000 to $4,000 they paid recruiters who were working for the employer.

Under the Fair Labor Standards Act farmers must warn recruiters in writing against extracting fees from laborers. But Fancy Farms did not include this contract clause because it was “not aware of any federal regulations requiring it to do so,” U.S. District Judge Susan Bucklew wrote in her opinion.

Schell was an adviser to the Florida Rural Legal Services attorneys who brought the case on behalf of 54 Hondurans. He indicated the decision will be appealed.

“The government adopted this requirement to try to enlist employers into the struggle against labor trafficking by reining in their foreign recruiters,” Schell says. “If employers can ignore this requirement with impunity, the regulation ceases to be much of a tool against labor trafficking.”

There are efforts to clean up the recruitment system. The Coalition of Immokalee Workers, celebrated for exposing slavery rings, is encouraging the Mexican National Employment Service to recruit and screen H-2A applicants.

Johnson, owner of the Wauchula harvesting company, says he doesn’t need recruiters. He uses word of mouth, asking his best workers to recommend other workers.

“You get one name, you build it slowly so that you build it right and you build it with the right people,” he says. “They hear how we treat people so that spreads, too.”

Yet migrant advocates say the reverse is also true, that if the prevailing policy message is all about deportation, the main motivator is fear and the result is flight.

Reggie Brown notes the connection between policy and labor availability. Brown will retire at the end of January from running the Florida Tomato Committee, the state’s tomato regulator and marketer.

“It’s one of the biggest challenges in the business and it’s been that way for a number of years now,” Brown says. He agrees the Trump administration’s push for deportations is counter-productive.

“The policy of increasing the pressure certainly does not add in numbers to the workforce and any reduction in the workforce is a challenge to the business,” Brown says.

He wants an expanded and better-managed guest worker process that allows migrants to travel freely between the U.S. and their native countries without fearing immigration agents. He isn’t optimistic about Congress making the necessary changes, however.

“In the world we live in, who knows what the likelihood is of anything?” Brown asks. “It can all start or end with a tweet.”